Maswangayi v Minister of Defence and Military Veterans and Others (5309/2016) [2017] ZAGPPHC 827 (4 August 2017)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 5309/2016

DATE: 4/8/17

REPORTABLE: YES/NO

OF INTEREST TO OTHERR JUDGES: YES/NO

ln the matter between:

MOZAMANE TEAPSON MASWANGANYI

APPLICANT

and

THE MINISTER OF DEFENCE AND MILITARY VETERANS FIRST RESPONDENT

THE CHIEF OF THE SANDF SECOND

RESPONDENT

THE SECRETARY FOR DEFENCE

THIRD RESPONDENT

JUDGMENT

RAULINGA, J

1. This matter concerns an application for re-instatement of the applicant to his former position at the South African National

Defence Force ("SANDF") with effect from 18 July 2014 being the date of termination of his service alternatively from 13 February 2015 being the date on which the applicant's conviction and sentence were set aside. The applicant further seeks an order of costs and that his benefits and remuneration be paid to him within 7 days of the order.

2. His services were terminated in terms of section 59(1)(d) of the Defence Act 40 of 2002 ("the Act" ). The application is opposed by the respondents on the basis thereof that there is no legal basis for the order sought. The respondents contend that the applicant's services were terminated by operation of law, and this does not amount to an administrative act ion. Further, that there is no provision in law under which the applicant may be reinstated to his former position after his services have been terminated by virtue of the provisions of section 59(1)(d) of the Act.

3. The applicant was arrested on 26 October 2010 on a charge of rape. He was convicted on the same charge and sentenced on 18 July 2014 to life imprisonment. He appealed against his conviction and on 13 February 2015 the Gauteng High Court

- Pretoria upheld his appeal and set his conviction and sentence aside. On the same date being 13 February 2015 a warrant of hibernation was issued in terms whereof he was liberated from custody and was released with immediately effect.

4. Because of the applicant's conviction and imprisonment, his services within the SANDF were terminated from date of sentence being 18 July 2014. On 16 February 2015, after his release from prison, he submitted the Court order and the warrant of liberation to Adj Mashabela at his unit with the request to be reinstated and during which visit he tendered his services. He was however informed that he should submit an application for his reinstatement. Despite submission on 13 March 2013 of an application for his reinstatement, he never received any reply to that application.

5. It is evident from the record that even correspondence forwarded to the respondents by the applicant's union,

the South African National Defence Union ("SANDU") and ULASA were not responded to by the respondents. This then prompted

the applicant to launch this application.

6. The respondents request indulgence for condonation for the late filing of their answering affidavit. The applicant on the other hand applies for condonation for the late filing of its replying affidavit.

7. I have observed that the respondents dilly-dallied to file their answering affidavit. I accept the explanation by the applicant for his delay to file his replying affidavit, was reasonable in the circumstances. While I am inclined to accept the respondent s' explanation for the delay, I am of the view that it has some element of reluctance in it. It is for that reason that they must be punished with a punitive cost order.

8. Section 59(1)(d) of the Act provides:

"Termination of service of members of Regular Force

(1) The services of a member of the Regular Force is terminated -

(a)...........................

(d) if he or she is sentenced to a term of imprisonment by a competent civilian court without the option of a fine or if a sentence

involving discharge or dismissal is imposed upon him or her under the Code; or

9. Section 59(3) provides:

"(3) A member of the Regular Force who absents himself or herself from official duty without the permission of his or her commanding officer for a period exceeding 30 days must be regarded as having been dismissed if he or she is an officer, or discharged if he or she is of another rank, on account of misconduct with effect from the day immediately following his or her last day of attendance at his or her place of duty or the last day of his or her official leave, but the Chief of the Defence force may on good cause shown, authorise the reinstatement of such member on such conditions as he or she may determine.

10. Section 42(1) of the Military Supplementary Measures Act No 16 of 1999 (" MSMA" ), provides:

" 42 Suspension Awaiting Trial or appeal.

(1) When in the opinion of the Chief of the South African National Defence Force, it will be in the interest of good governance or reputation of the South African Defence Force, or in the interest of justice, he or she may order any person subject to the Code not to return to duty during any period subsequent to that person -

(a) Appearing as an accused before any civil court or military court; or

(b) Having been convicted by any civil court or military court, if that person intends appealing against the conviction or applying for the review of the case, pending the conclusion of the trial , appeal or review, as the case may be.

(2) The Chief of the South African National Defence Force shall give written notice of

his or her intention to consider the power contemplated in subsection(l) to the affected person and shall allow that person to respond in writing within 24 hours or any long- period that the Chief may determine, of that person ' s receipt of such notice".

11. The distinction between subsections 59(1)(d) and 59(3) of the Act, is that subsection 59(1)(d) concerns a member who has been sentenced by a civilian court to a term of imprisonment without the option of a fine. Whereas subsection 59 (3) concerns a member who has absented himself or herself from official duty without the permission of his or her commanding officer for a period exceeding 30 days. In both instances such member's services maybe terminated or regarded as having been dismissed or discharged.

12. Subsection 59(1)(d) kicks in, in the event that a member has been sentenced to a term of imprisonment by a competent

civilian court without the option of a fine or if a sentence involving discharge or dismissal is imposed upon him or her under the Code or in terms of subsection 59(3).

13. The distinction between subsections 59(1)(d) and 59 (3) and section 42(1) of the MSMA is that in terms of section 42 of the MSMA the said member may be suspended while awaiting trial, review or appeal.

14. A further distinction is that subsection 59(1) is silent on the powers and discretion of the second respondent regarding possible

reinstatement after termination of services . Whereas subsection 59(3) grants such power and discretion to the second respondent to on good cause shown reinstate the said member.

15. Section 42(1) of the MSMA however, directs the second respondent to give notice to the affected member before making a determination in terms thereof.

16. In my view both subsections 59(l)(d) and 59(3) as well as section 42 (1) of the MSMA are applicable in the case of the applicant. The applicant was imprisoned on 14 July 2014 without the option of a fine and spent more than thirty (30) days in prison until he was released on 13 February 2015. This in my view left the second respondent to invoke the provisions of subsection 59(1)(d), 59 (3) of the Act or section 42(1) of the MSMA. However, the second respondent elected to invoke the provisions of subsection 59(l)(d) of the Act.

17. The respondents contend that the invocation of subsection 59(1)(d) of the Act does not amount to an administrative action, because the applicant's services were terminated by the operation of law. According to them the respondents did not make any decision.

18. I part ways with the respondents on this submission. Even in the event that I were to accept that the termination of the applicant's

services was by operation of law, the mere fact that the second respondent made a choice to invoke subsection 59(1)(d) and not

subsection 59(3) or subsection 42(1) of the MSMA, is an administrative action in itself. The respondent cannot hide

behind the fact that subsection 59(1)(d) is silent on the powers and discretion of the second respondent to reinstate

a member . The second respondent made a decision when it elected to invoke subsection 59(1)(d) and by so acting ignored the provisions of subsection 59(3) and section 42(1) of the MSMA, which decision was arbitrary in the circumstances.

19. The respondents submit that they were not aware that the applicant was arrested in July 2010. Further, that they were not aware of his criminal trial on a charge of rape that lasted between 2010 and 2014. Even before one considers the fact s, it is improbable that an officer of the Defence Force, with its vigilant and strict observation of the rules would disappear without them noticing it.

20. The facts of the matter are that after the applicant was arrested, the officer commanding, one KW Nethononda, on 26 October 2010, he directed a letter to Captain W.B Maake in which he confirmed that 92687524PE (Mozamane Teapson Maswanganyi)was an employee of the SANDF working at 7 SAIBN in Phalaborwa.

Annexure "MTN 10" to the replying affidavit also confirms that indeed the applicant was arrest ed. Definitely this is not a thumb-suck, but concrete evidence confirming that the respondents were aware of the arrest of the applicant. The applicant also filed a confirmatory affidavit by one Janse van Rensburg regarding the processes he undertook in this matter.

21. The respondents having become aware of the conviction and sentence of the applicant, they ought to have anticipated the possibility of an appeal process and subsequent release from prison. Further, if the second respondent was convinced that the applicant did not report his arrest and subsequent conviction and sentence to his supervisors, then they could have invoked the provisions of section 59(3). After they were informed of the conviction and sentence of the applicant, they ought to have invoked the provisions of section 42(1) of the MSMA. Whether the applicant was suspended or not is of no moment - this was a self- inflicted wound by the respondents.

22. In the premises I make the following order:

22.1 Condonation is granted to both applicant and the respondents with an order that the respondents must pay the costs on a punitive scale;

22.2 The decision of the second respondent is reviewed and set aside;

22.3 The respondents are ordered to reinstate the applicant with effect

from 18 July 2014 being the date of termination of his services;

22.4 The respondents are ordered to reinstate payment of the applicant's

salary and benefits with effect from 18 July 2014;

22.5 The respondent s are ordered to effect payment forthwith, but not

later than 30 days from date of this order of any or all of the applicant ' s salaries and other benefits that he would have been

entitled to and would have received if not for the termination of services; and

22.6 The respondents are ordered to pay the costs of this application on a punitive scale as between attorney any client.

_________________________

TJ RAULINGA

JUDGE OF THE GAUTENG DIVISION, PRETORIA